Can Delaware require me to pay a contractor-based FOIA estimate before retrieving school plans?

Plain-English summary

Brandy Topolski requested school capacity files, as-built floor plans, related drawings and assessments, and correspondence about school layouts. The Delaware Department of Education sent her ABHA Architects' $2,920 estimate for work involving its BIM360 database and related files. Topolski challenged the fees and the demand for advance payment. The Department defended its use of the contractor and its estimate under Section 10003(j).

The AG decided one payment issue: a public body may collect all estimated FOIA fees in advance. The Department did not violate FOIA by requiring advance payment. The opinion did not decide whether ABHA's charges were recoverable, whether the estimate was reasonable, or whether the Department correctly applied Section 10003(j). Those were the parties' positions in the background, not holdings.

The AG observed that the requested information about school district buildings was potentially subject to Section 10002(o)(17). It recommended that the Department review the potential scope of records in its possession and ABHA's database, exclude types of records subject to that exemption, and provide a new cost estimate within Section 10003's timeframes. The opinion did not rule that every requested drawing or capacity file was exempt.

What this means for you

If you requested school facilities records

An advance-payment demand alone did not violate FOIA here. The AG still recommended a new estimate after a review for potentially exempt building information. The opinion gives no ruling on the amount of the $2,920 estimate or on the contractor's individual charges.

If you coordinate FOIA responses for a school agency

You may collect the full estimated fee in advance under the provision cited by the AG. For a request like this one, the AG recommended reviewing records held both by the agency and by its contractor for types covered by the building-security exemption before issuing a new estimate.

If you advise a public body

Keep the Department's arguments separate from the AG's findings. The Department argued that Section 10003(j) governed ABHA's retrieval charges and that Section 10003(m)'s requirements did not apply. The AG made no ruling on those arguments. It found only that advance collection was permitted and recommended a revised estimate after the exemption review.

Background and statutory framework

Topolski asked for records spanning several school years. The Department said ABHA held the BIM360 database and that its own employee could reach only some recent information without considerably more work. Those were statements in the Department's response; the opinion did not decide whether using ABHA was necessary or whether each proposed charge was allowed.

The opinion cites 29 Del. C. § 10005(m)(5) for the authority to collect estimated fees in advance. It also discusses Section 10002(o)(17), which may cover information about buildings operated by the State that could facilitate a terrorist attack or put schoolchildren at risk of a mass casualty event. The AG characterized the requested school building information as potentially subject to that provision and recommended a scope review. It did not identify particular documents to withhold.

Common questions

Did the AG approve the $2,920 contractor estimate?

No. It resolved the advance-payment objection and recommended a new estimate after reviewing the requested records for information subject to the building-security exemption. It did not decide whether the contractor's proposed charges were recoverable or reasonable.

Can the Department demand the whole estimate before retrieving records?

Yes. The AG found that public bodies may collect all estimated fees in advance and that the Department did not violate FOIA in that regard.

Are all school floor plans and capacity records exempt?

The opinion makes no categorical ruling. It says the requested information is potentially subject to Section 10002(o)(17) and recommends a review to exclude types of records covered by that exemption.

Did the AG decide whether Section 10003(j) allows these contractor charges?

No. The Department relied on that section in defending its estimate, but the AG did not resolve that argument in its discussion or conclusion.

What should happen next in this case?

The AG recommended that the Department review the potential record scope in its own possession and ABHA's database, then provide Topolski a new estimate within Section 10003's timeframes.

Citations

• Statutes: 29 Del. C. § 10003(a) (access and copying); § 10005(c) (burden of proof); § 10005(m)(5) (advance fees); Section 10002(o)(17) (potential building-security exemption). The Department's response invoked Section 10003(j) and Section 10003(m).
• Case: Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1004 (Del. 2021).

Source

• Landing page: https://attorneygeneral.delaware.gov/2026/01/16/26-ib04-01-16-2026-foia-opinion-letter-to-brandy-topolski-re-delaware-department-of-education/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2026/01/Attorney-General-Opinion-No.-26-IB04.pdf

Original opinion text

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
KATHLEEN JENNINGS DEPARTMENT OF JUSTICE FAMILY DIVISION (302) 577-8400
820 NORTH FRENCH STREET
FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL
WILMINGTON, DELAWARE 19801
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 26-IB04

January 16, 2026

VIA EMAIL

Brandy Topolski
[email protected]

RE: FOIA Petition Regarding the Delaware Department of Education

Dear Ms. Topolski:

We write regarding your correspondence alleging that the Delaware Department of Education violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10008 (“FOIA”). We treat your correspondence as a Petition for a determination pursuant to 29 Del. C.
§ 10005 of whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we find that a public body may require payment of all fees in advance, and the Department did not violate FOIA in that regard. Regarding the cost estimate, we are recommending that the Department produce a new cost estimate in accordance with the below provisions.

BACKGROUND

You submitted a records request to the Department seeking multiple items, including “all ABHA [Architects] reviewed capacity files, capacity worksheets, revisions, and utilization percentages.” 1 In addition, you sought the following:

As required by DOE Regulation 401 and the FY26 manual, please provide:
1. All as built floor plans submitted to ABHA Architects since FY2017 for all impacted schools.

1
Petition.
 2. All updated drawings or facility assessment updates used to calculate capacity.
3. Any ABHA correspondence regarding changes in school layouts or room classifications. 2

In response to these two items, the Department provided a cost estimate from ABHA Architects for a total of $2,920.00. This cost estimate includes charges for reviewing file structures, reviewing BIM360 systems, reviewing Outlook correspondence, reviewing collected documents, FTP setup, and file transfers. This Petition followed.

In the Petition, you allege that the Department violated FOIA by improperly denying access to records and improperly assessing fees. You argue that the Department improperly asserted it is not the custodian of these records, but the School Construction Technical Assistance Manual requires the school districts to submit electronic as built drawings to ABHA Architects and the Department uses this database for statutory and operational purposes including capacity calculations and other purposes. You assert that “[c]harging $2,920 for retrieval of existing digital records that DDOE routinely accesses for official purposes is unreasonable and constitutes a constructive denial of access.” 3 You assert the estimate includes nonrecoverable fees. Finally, you contend that conditioning access on full payment of the contractor fee in advance violates FOIA.

The Department, through its legal counsel, replied to the Petition and enclosed the affidavit of the Department’s FOIA coordinator. (“Response”). The FOIA coordinator attests to the Department’s Education Associate having access to some of the requested information from the database that is in the custody of ABHA Architects, but the Department “cannot fulfill [your] request with reasonable efforts from the records it can access.” 4 Rather, the FOIA coordinator asserts that a search by the Education Associate would take twice as long and be limited to the most recently uploaded floor plan information.

In its Response, the Department asserts it controls the requested information, but it is located within the BIM360 database, which is in the custody of ABHA Architects. As you asked for records spanning back nearly ten years and the Department could not fulfill this request with reasonable efforts, the Department contends it properly contacted ABHA Architects for retrieving the records under Section 10003(j). The Department argues the provided cost estimate is appropriate, and as the requirement for this cost estimate arises from Section 10003(j) and not 10003(m), it contends that Section 10003(m)’s requirements do not apply to this estimate. The Department asserts it has met Section 10003(j)’s requirement to list all retrieval charges expected to be incurred. The Department states it does not permit waivers for any class of persons, and FOIA expressly allows public bodies to require all or portion of the estimated fees in advance. The Department states that if you decide to proceed with the request, the Department will perform

2
Id.
3
Id.
4
Response.
2 its own review to identify responsive, public documents. The Departments notes that it is likely that the requested materials will contain nonpublic documents, because under Section 10002(o)(17), records of buildings operated by the State “could facilitate the planning of a terrorist attack or put Delaware’s school children at risk of a mass casualty event.” 5

DISCUSSION

Delaware’s FOIA law “was enacted to ensure governmental accountability by providing Delaware’s citizens access to open meetings and meeting records of governmental or public bodies, as well as access to the public records of those entities.” 6 FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records. 7 The public body has the burden of proof to justify its denial of access to records. 8 In certain circumstances, a sworn affidavit may be required to meet that burden. 9 As an initial matter, we find that public bodies are permitted to collect the estimated fees in advance. 10

In this case, the two items at issue in this request seek information about school district buildings that is potentially subject to Section 10002(o)(17). As such information is not subject to disclosure, we recommend that the Department review the potential scope of records in its possession and in ABHA Architects’ database to exclude those types of records subject to this exemption and within the timeframes of Section 10003, provide a new cost estimate to you.

CONCLUSION

For the foregoing reasons, we find that a public body may require payment of all the estimated fees in advance, and the Department did not violate FOIA in that regard. Regarding the cost estimate, the Department is recommended to produce a new cost estimate in accordance with above.

5
Id.
6
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1004 (Del. 2021).
7
29 Del. C. § 10003(a).
8
29 Del. C. § 10005(c).
9
Judicial Watch, Inc., 267 A.3d at 1008-1012.
10
29 Del. C. § 10005(m)(5).
3
 Very truly yours,

__________
Daniel Logan
Chief Deputy Attorney General

cc: Carla A.K. Jarosz, Deputy Attorney General Dorey L. Cole, Deputy Attorney Genera

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